The Presentation BC Government Didn’t Want You to Hear

Earlier this year, lawyers at Acumen Law Corporation were asked to offer their expertise on the topic of legalizing marijuana, and what that would mean for the challenges of policing. What Acumen’s lawyers didn’t know was that BC Government would insist on removing Acumen’s expertise from the published materials.

As lawyers who have years of experience reviewing driving law, challenging driving prohibitions, and defending impaired driving allegations, we know we have a vast amount of knowledge that should be considered when trying to tackle the topic of drugged driving.

We gave our presentation. It was well received by the vast majority of the audience. Unfortunately, BC Government did not seem to want to hear from defence lawyers. We were censored from the final materials.

(UPDATED) Below, you can listen to our full presentation, Drug Impaired Driving: Chill Out Dude.

Some of the topics we covered:

What are Standard Field Sobriety Tests? There are three. The first is the horizontal gaze nystagmus test, where an officer puts a pen-like object to your face and has you follow the pen with your eyes. The second is the walk and turn test, where you must essentially walk in a line. The third is a one-leg stand test, where you’re required to stand on one foot for 30 seconds without falling over. The opinion of law enforcement is that these tests can help determine if you’re impaired by drugs or alcohol.

One of the ways police can test whether someone is impaired by drugs is through bodily fluids. However, this has its own challenges. During urine testing, the tests identify metabolites of drugs rather than the drugs themselves. Testing for drugs or metabolites in urine is only of useful value to indicate some prior exposure to a drug, not ingestion. Urine tests are generally not effective to determine how impaired someone was when they were driving.

Under the Criminal Code of Canada, penalties for impaired driving can include jail. For a first offence, there’s a minimum 1-year driving prohibition, plus a $1,000 fine. For a second offence, there is a jail sentence of 30 days, with a minimum 2-year driving prohibition. A third offence accompanies a minimum jail sentence of 120 days, plus a driving prohibition of at least three years.

So who gets arrested? Well in the United States, the Public Health Report Journal looked into this and found that those arrested are more likely to be over 50 years old. Many arrested tested positive for multiple drugs, such as a mix of prescription medication.

This task force put together by the Federal Liberals found that cannabis affected driving can be a lot more complex than policing drunk driving. For starters, the level of THC in bodily fluids is not a reliable indicator of crash risk or degree of impairment. Why? Different levels of THC affects users differently, heavy users might not display any signs of impairment. In any case, depending on what bodily fluid you test, THC concentration results change. Additionally, THC can remain in the body even weeks later, when a user may only be impaired for an hour or two.

Police in Canada have already tested two devices, one from a company called Securetec and another from a company called Alere. Their devices work the same way. You stick a swab into someone’s mouth, stick the swab into a testing machine, and the machine tells you whether there’s a presence of drugs within the person’s body. The devices DO NOT tell you how impaired a person is from drugs, just whether there’s a presence of some drug in their saliva.

What’s important to know about these tests is that they’re very fallible. Our lawyer Kyla Lee took the training to do these tests, and learned people who have concussions cannot properly perform the horizontal gaze nystagmus test. People with previous injuries or foot problems will have more trouble passing the standing or walking tests. Many older drivers won’t be able to walk and turn or do a one leg stand, especially with flashing police lights in their eyes and traffic flying past just a few feet away.

It’s almost like they just really, really wanted to stretch the evaluation to 12 steps. There’s a breathalyzer test to make sure they didn’t mistake drugs for booze. They repeat all the SFSTs, such as the one-leg stand, the walk and turn and the horizontal gaze nystagmus test (they make you look up and down as well this time). They’ll check your pulse, three times, take you into a dark room to check your pupils, and maybe grope you a little, to check for, uh, muscle tone.

It’s a bit of a misnomer to call police officers drug recognition experts. With minimal training, without any real academic work, police officers qualified for drug recognition are called experts; mostly to convince the jury that cops know what they’re talking about.

Back in the 1980s, in the midst of a drug crisis, the Los Angeles Police Department, in conjunction with the National Highway Safety Association, picked up suspected drug users and forced them to go through a different bunch of tests in the name of developing drug recognition procedures. Of course, these were not drivers, often they were homeless and were suffering from all sorts of different conditions that the average driver is unlikely to have.

There was a case called R. v. Bingley decided in February 2017. The appellant raised an argument that the admissibility of an opinion of whether someone is impaired by drugs should depend on whether an officer is actually qualified as a drug-recognition expert. The court rejected the argument, and found the structure set out in the criminal code presumptively made that officer an expert. It’s a huge step back, and basically says: if the law says officers are drug recognition experts, then they are experts, regardless of their actual expertise or training.

Science has yet to provide a drug detection system that’s comparable to the breathalyzer test for alcohol. Alcohol and drug testing is different. Drug tests depend on an officer’s subjective interpretation, rather than an objective analysis of some measurable value. You have to remember, officers are biased: if they are giving you a test, they are doing so to verify what they already suspect in their minds.

The type of marijuana available today is much stronger than what was around a few decades ago. But still, research has shown that when someone smokes marijuana, their peak impairment happens at about 20 minutes after smoking. By the 45-minute mark, most signs of impairment will have faded. When eaten, the effects of marijuana may last much longer.

A “per se” limit for drug impairment is a threshold value, where the government says: if you have this much of this substance inside you, you’re considered impaired by that substance. It makes sense for alcohol, since alcohol remains as alcohol inside the body. But cannabis is different. Your impairment could be affected by your gender, your weight, your age, whether you have diseases and how much tolerance you have.

We expect to see something similar to BC’s Immediate Roadside Prohibition program being crafted to fight drug-impaired driving in the future. We think it’ll be like the IRP in that there will be escalating penalties for first and subsequent offences, that it’ll probably use a saliva test, and that the scheme will be vulnerable to court challenges.

Currently, there is a section that allows officers to give a 24-hour roadside prohibition based solely on their opinion of whether you were impaired. If seeing you order too many cheeseburgers was their reason for giving you a 24-hour prohibition, then that’s their reason – unless it’s challenged.

We’re working on challenging whether an officer can use a standard field sobriety test to form an opinion that a driver should be prohibited. We believe officers should only be able to use these tests for the purposes of gathering grounds to make a demand, but unfortunately, the court did not agree with us. We are challenging this, though, and expect to have a hearing sometime in the late fall of 2017.

There’s no clear timeline on marijuana legalization in Canada. Provinces are pushing back, particularly Manitoba, saying they want more time. Here in BC, we expect the provincial government to enact legislation similar to the IRP as part of its efforts to prosecute drugged driving. We look forward to challenging it.